WANTED: A sharp set of pearly whites for this agency
With small businesses across Australia increasingly under threat from the games that can be played by shopping centre landlords, franchisors and larger businesses, it’s certainly time for all small businesses to have access to an independent small business commissioner in their particular state or territory.
With Victoria, South Australia, Western Australia, and New South Wales all having a state-based small business commissioner to help their small businesses, businesses in Tasmania, Queensland, the North Territory and the ACT are certainly missing out on the considerable benefits that a state or territory small business commissioner could bring at very little cost.
And no one should get too excited about the so-called new federal Small Business Commissioner. We have had lots of talk of a federal small business commissioner during the year, but it has only just been created. Obviously the Federal Labor Government is a big talker.
No promise is to too big to make. The only problem is that the end result doesn’t generally match the talk. In fact, much is promised with much fanfare, but little is delivered with even less substance.
That’s certainly the case with the new federal small business commissioner. After much promise and even greater fanfare, the new commissioner won’t be given any legislative powers…. which sadly means it will have no teeth.
No doubt the new cCommissioner will work hard in the role. After all, there are certainly lots of things that can be done to assist small businesses in their inevitable disputes with Federal Government agencies. Who do small businesses turn to when they have a business related dispute with a Federal Government agency? The Ombudsman is there for administrative or process related issues, but doesn’t readily get involved in business related disputes.
A state or territory based small business commissioner can’t help small businesses with Federal Government agencies so it’s up to the Federal Government to ensure that the federal small business commissioner can do something meaningful about the very real problems that small businesses have with Federal Government agencies.
What does the Federal Government’s failure to give the new federal small business commissioner any legislative powers mean for small businesses?
Well quite simply, it will be a missed opportunity to help small businesses in a real and practical way.
More dangerously, the Federal Government’s failure will mean that the new federal small business commissioner will be too busy trying to give the role some substance at a federal level to even think about how he can help Tasmanian, Queensland, Northern Territory and ACT small businesses.
For starters don’t expect the new Federal commissioner to set up a new office in Tasmania, Queensland, the Northern Territory or ACT.
And forget about trying to get help from the Federal Commissioner with any dispute that a small business may have with a landlord or franchisor. And don’t even think about the Federal Commissioner helping small businesses who may have a commercial dispute with State Government agencies or Local Councils.
The simple fact is that the Federal Commissioner is likely be swamped with issues small businesses have with Federal Government agencies. That would have been a good thing, but the Federal Commissioner will lack the statutory independence that’s so critical to State-based Small Business Commissioners.
Unless the Federal Commissioner has legislative backing it runs the risk of not being as effective as he could have been. It’s hard for a Federal Commissioner as a public servant to deal with an uncooperative Federal public servant or Department giving small businesses grief.
That’s why we give the Ombudsman statutory independence. And that’s why the Federal Commissioner will not be able to fulfil its full potential in the same way that for example the South Australian Small Business Commissioner has been able to do.
The point is very simple.
Small businesses in Tasmania, Queensland, the Northern Territory and ACT need state or territory based Small Business Commissioner to assist them with any disputes they may have with larger businesses.
All those small business retailers who have had a problem with their landlord know how it is when there’s a dispute. Taking legal action can be prohibitive and the lease tends to be stacked in favour of the landlord. Changes to leases and rent increases can sadly be offered on a take it or leave it basis.
Who does the small business retailer turn to? The ACCC will generally not get involved in individual business disputes. Members of Parliament often help and the state or territory Minister for Small Business can certainly be a passionate advocate for small businesses generally, but the problem is that these are often ad hoc responses and may be of little help where the small business retailer is facing a nasty landlord.
The same goes if a franchisee in Tasmania, Queensland, the Northern Territory and ACT is the victim of a nasty franchisor, or the small business is up against a difficult state or territory government department or local council.
A state or territory small business commissioner may not guarantee a result for the small business, but a small business commissioner in Tasmania, Queensland, the Northern Territory and ACT would be immediately available to assist and could adopt the alternative dispute resolution processes which in South Australia have led to disputes being successfully resolved in up to 86 per cent of cases.
That’s up to 86 per cent of cases that can stay out of the courts and where the commercial relationship between the small and large business can be preserved.
Having a small business commissioner in Tasmania, Queensland, the Northern Territory and ACT would give small businesses in the state or territory an independent person to help resolve business disputes through processes such as meditation.
Such a commissioner also could identify emerging issues and trends that could be addressed through mandatory industry codes of conduct.
The use of mediation to resolve business disputes is a well recognised and long accepted process that helps keep matters out of the courts.
Mandatory industry codes of conduct could usefully provide for a formal alternative dispute resolution framework that small businesses in Tasmania, Queensland, the Northern Territory and ACT could use in the event of a dispute with a larger business.
That’s the model adopted in South Australia and could easily be adopted in Tasmania, Queensland, the Northern Territory and ACT.
As for the cost of a setting up a state or territory small business commissioner the role could be established in a very cost effective manner. Initially, the commissioner could be a part-time appointment with just a small number of full time staff members. Formal mediations could be done by an external panel of mediators with individual mediators being appointed as required.
Importantly, having an effective small business commissioner in Tasmania, Queensland, the Northern Territory and ACT backed by meaningful legislation could help promote the resolution of business disputes in a timely, reasonable and cooperative matter.
Over time, that could actually reduce the commissioner’s workload and lead to significant cost savings in the commissioner’s operation.
Given the obvious benefits all we need now is bipartisan political support for a small business commissioner in Tasmania, Queensland, the Northern Territory and ACT. And we just need the Federal Government to give its new federal small business commissioner some legislative teeth otherwise the new Federal Commissioner might end up being all bark and no bite.
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